For those of you visiting this site after reading Mr. Mulgrew’s article published in today’s Vancvouer Sun, welcome.
If you are looking for more information on my comments on Bills 44, 52 and the BC Government’s Justice Reform Initiative you can find my previous articles here and here and here.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for various soft tissue injuries and a labral tear caused by a motor vehicle collision.
In this week’s case (Foster v. Kindlan and Pineau) the Plaintiff claimed damages from two motor vehicle collisions, the first in 2007, the second in 2009. Fault was not at issue in either claim. These collisions caused various soft tissue injuries and a labral tear which continued to pose difficulties for the plaintiff at the time of trial and were expected to continue into the future. In assessing non-pecuniary damages at $75,000 Mr. Justice Savage provided the following reasons:
[64] In this case the Plaintiff suffered soft tissue injuries to the neck, back, knee, and shoulder and a labral tear to her left hip. Prior to the 2007 Accidents she led a physically demanding lifestyle working as a fitness instructor, and had a high level of physical fitness. She was, however, transitioning out of this employment at the time of the 2007 Accident, by training for career as an LPN that would not involve fitness as part of her daily employment activity.
[65] Ms. Foster was not entirely asymptomatic from her 2005 Accident at the time of the 2007 Accident. It is also apparent that she has had ongoing back issues that required periodic chiropractic treatment unrelated to the 2007 Accident and 2009 Accident. She also had an earlier knee injury that required surgery. These factors affect the “original position” to which Ms. Foster must be returned by the award of damages.
[66] I find it unlikely that Ms. Foster will have surgery to the labral tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose opinions are to be preferred over that of Dr. Sam. Dr. O’Connor and Dr. Gilbart have more specialized experience in this area than Dr. Sam, who is a general family physician. While Ms. Foster experiences pain during her physically demanding employment activities, she is able to take extended (one week or longer) motorcycle trips without any impairment that is apparent to her companions. The videotape evidence shows a cautious rider but not one prevented from enjoying this pursuit.
[67] Ms. Foster has suffered emotionally during periods where she has not been able to work. However, her emotional state has not prevented her from taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs and the Tri-cities area. Moreover, her emotional issues have had a variety of causes, including relationship issues which are admittedly unrelated to the two accidents.
[68] I have reviewed the cases provided by counsel. There are aspects of those cases that are helpful, but there are also differences that prevent direct application. The Defendants’ cases generally involve less seriously injured persons. Many of the cases submitted by the Plaintiff involve a prognosis for chronic daily pain. That is not the prognosis for Ms. Foster. In the circumstances, I award $75,000 in non-pecuniary damages.
While ICBC can deduct Canada Pension Plan disability benefits from an UMP Claim, can the same be done for additional “Children’s Benefits” paid by the CPP? Arbitrator Yule addressed this question in an UMP Arbitration Decision that was recently provided to me. In short Arbitrator Yule held that Children’s Benefits are non-deductible.
In the unpublished decision (H v. ICBC) the Plaintiff was awarded damages following a jury trial. The Plaintiff applied for payment under his own UMP Coverage as the at-fault motorist was underinsured. While the parties largely agreed on the deductibility of past CPP benefits from ICBC’s payment obligations, they could not agree on whether the additional CPP funds the Plaintiff received as “Children’s Benefits” were deductible. In finding that they were not Arbitrator Yule provided the following reasons:
37. In one sense it may well be thought that it must be a “benefit” to the Claimant to receive money (which must be paid to him in these circumstances) under a statutory scheme (the CPP) which imposes no constraint on his use of the monies. On the other hand, it seems to me the underlying rationale for the payment of the disabled cobtributor’s child’s benefit is the expectation that the money will be used by the recipient in a general way in the partial discharge of the recipient’s legal duty to support and maintain the children who are entitled to the benefits. In this sense, I think the benefit or right is that of the child and not of the parent or custodial person. It is significant that the benefits payable under Division A of Part II of the CPP, one is described as “a disability pension” (what the Claimant receives on account of his own disability) and another – the benefit at issue – is described as “a disabled contributor’s child’s benefit” [emphasis added]. It is difficult to transform what the statutory CPP scheme describes as “a child’s benefit” into the parent’s/custodial person’s benefit for the purpose of s. 148.1(1)(i). At least here where the monies are payable under another statutory scheme, I think “benefit: or “right” in s. (f.2) should be guided by the description of the benefitin the statory scheme, and where the statutory scheme itself defines the benefit as the child’s beneift, it shoudl be considered to be the child’s benefit. This interpretation also maintains consistency with the construction of ss. (f.2) where I have concluded that the entitlement to the child’s benefit is that of the child.
38. Accordingly I conclude that the children’s benefits paid to the Claimant are not deductible from his UMP Compensation.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
One of the changes in the new BC Supreme Court Civil Rules is the requirement for parties to produce a list of witnesses in their trial brief to be exchanged 7 days prior to a Trial Management Conference.
In addition to this Rule 12-5(28) prohibits a party from calling a witness who was not listed “unless the court orders otherwise“. The first reasons for judgement that I’m aware of addressing this subrule were recently shared with me.
In the unreported case (Topkins v. Bruce) the Defendant attempted to call an unlisted witness at trial. Mr. Justice Curtis refused to allow the witness to testify providing the following reasons:
[4] …The new Rules say that you must give a list of your witnesses no later than 28 days before the trial, or the Trial Management Conference. There is a Trial Management Brief, which happebd to be late filed; that is not a big deal, a late filing, but it just adds to the approach, I guess. Although the defendant knew that Mr. Simm existed, the Trial Management Brief says “lay witness number one” and “lay witness number two”. This not only does not conform with the Rules, but if permitted would deliberately frustrate them.
[5] The purpose of knowing who the witnesses are is so that the other side can prepare their case, and the Judge, if they want, can order a statement concerning the witnesses, as well as estimate the proper lenght of trial.
[6] At the Trial Management Conference, September 30th, a direction was given that the witness list will be provided at a subsequent date. The name of the witness was not provided until after that date. The explanation is taht the address for the witness was not discovered until later.
[7] In the circumstances of this case, I am not prepared to allow Mr. Simm to testify, because one, I do not think his evidence is going to be particularly relevant in the circumstances of the case; two, his name was not disclosed, although it was known at the Trial Management Conference, and three, he name was not disclosed, although known, on the date that the Trial Management Conference Judge had directed that his name be given.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
As previously discussed, a common occurrence following a collision is the onset of symptoms in a pre-existing, but otherwise asymptomatic, conditions. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, highlighting and assessing damages for such a scenario.
In this week’s case (Zawislak v. Karbovanec) the Plaintiff was involved in a 2009 rear-end collision. Fault was admitted by the opposing motorist. The Plaintiff had pre-existing, asymptomatic, degenerative disc disease in his spine. The collision rendered this condition symptomatic resulting in on-going chronic symptoms. In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:
[31] Dr. Cameron, a neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle spasm in her shoulder muscles and neck muscles, left side predominant. In Dr. Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and musculoskeletal injuries to her neck, shoulders and upper back in the motor vehicle accident. Ms. Zawislak has developed headaches associated with the neck pain as a result of the musculoskeletal injuries to her neck and shoulders that she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains partially disabled because of the ongoing upper back pain, headaches and neck pain which had resulted from the soft tissue injuries and musculoskeletal injuries in the form of a whiplash she sustained in the motor vehicle accidents.
[32] According to Dr. Cameron, 80% of the individuals over the age of 40 have degenerative disc disease and most of those individuals go around without pain until a trauma, such as a motor vehicle accident, renders their disc disease symptomatic. Trauma makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially degenerated and, in his opinion, her ongoing pain in her neck, with the attendant headaches, and her back are likely caused by the motor vehicle accident…
[44] In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre?existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre?existing condition…
[49] Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non?pecuniary damages is $60,000.
Cynicism is an undesirable lens to view matters through but sometimes it is appropriate. Unfortunately, some of the recent Bills introduced this week in the BC Legislature make it very difficult to view BC’s Justice Reform Initiative in any other way.
You may recall earlier this year the Government made a bold presentation highlighting perceived shortcomings in BC’s Justice System. The Government announced that a Justice Review would be undertaken to “identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services“
The Government appointed Mr. Cowper to head this review and he was tasked to “report to government as he develops recommendations around engagement of key institutions and stakeholders. Government will provide periodic updates in response to his recommendations and he will make his final report to government by July 2012.”
It is now early May. We are two months away from Mr. Cowper’s “final report“. Despite this, the Government has introduced two Bills which have passed second reading seeking to drastically overhaul BC’s civil justice and traffic court system. Specifically I’m referring to Bill 52 and 44. I discussed these here and here.
If the Review’s final recommendations are not in yet how can laws seeking massive overhaul to BC’s civil and regulatory justice system be introduced? If these Bills pass Third Reading in the Spring Session, it appears the Justice Review is mere political theatre. If not, and the Government actually takes Mr. Cowper’s findings into consideration before passing these laws, then I will admit to being too quick in playing the cynicism card.
Remember the political fallout several months back when ICBC proposed to increase insurance premiums based on a single driving violation? The Government called ICBC’s proposal “unfair” and “not appropriate”. Something must have changed since then because the Government has now introduced a Bill to give ICBC the power to levy “additional premiums” that ICBC considers appropriate based on driving point penalties.
In the whirlwind of new Government legislation recently introduced, Bill 52 received second reading this week. This legislation seeks to drastically overhaul BC’s motor vehicle offense ticketing dispute system by taking these matters away from our Courts and instead creating administrative tribunals to process disputes.
In addition to the above, the Bill seeks to amend Section 34 of the Insurance (Vehicle) Act as follows:
13 Section 34 (1.1) is amended
(a) by adding the following paragraphs:
(d.1) adopt or establish a driver assessment point system classifying drivers according to the number, nature and kind of contraventions of driving enactments under the Motor Vehicle Act;
(d.2) in respect of a driver assessment point system adopted or established in accordance with paragraph (d.1), adopting or establishing a method by which point penalties may be converted or compared to driver assessment points for the purposes of assessing and levying basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate; , and
(b) by repealing paragraph (e) and substituting the following:
(e) according to any system of classifying drivers adopted under paragraph (c), a point penalty system adopted or established under paragraph (d) or a driver assessment point system adopted or established under paragraph (d.1), assess and levy basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate.
In short, this law will give ICBC the power to increase premiums “under the terms and conditions (ICBC) considers appropriate“. This legislation leaves no checks and balances to ensure that what the Government recently called unfair does not become the law of the land.
While the Bill’s goal of freeing up police and judicial resources is worthwhile, the devil’s in the details. As a practical matter this is what the Bill will accomplish:
1. If a “driving enforcement officer” (ie – a police officer) doesn’t like your driving you receive a “driving notice” (ie – a ticket)
2. You lose your right to judicial challenge, instead you are now called a “disputant” and must place your challenge with a newly minted “Driving Notice Review Board“. Of note, you won’t have the right to cross-examine your accuser at your “resolution conference“.
3. If/when you lose your dispute before the Board you are issued a “monetary penalty“
4. If you cant afford to pay the penalty ICBC can refuse to issue you a licence
5. Last but not least ICBC will issue you “point penalties” and you will then pay higher insurance premiums based on whatever system ICBC develops.
This overhaul will likely bring constitutional scrutiny since the Canadian Charter of Rights and Freedoms is No Trifling Matter. As MLA Sather quipped on the floor on the Legislature this week “I wasn’t aware that ICBC had that kind of power”.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.
In this week’s case (Van Hartevelt v. Grewal) the Plaintiff was involved in a physical altercation with the Defendant R. Grewal. While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff “with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor“.
The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.
The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place. The Plaintiff was a tenant there. The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault. Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award). In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relationship:
[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn. However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment…
[54] …As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…
[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…
[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley. I answer all of these questions in the affirmative.
[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it. Thus, it is both efficient and fair to impose vicarious liability. In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.
[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of Mr. R. Grewal’s role as an on-site owner representative. As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk. They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006. The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.
[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite. This was made in the presence of Mr. R. Grewal. Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.
[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.
As previously noted, BC’s Government and Judiciary are involved in a public row with the Government accusing the Courts of being inefficient and the Judiciary responding with complaints of underfunding. Additionally these two branches of Government are involved in litigation with the BC Court of Appeal recently upholding an order forcing the Government to produce otherwise confidential Cabinet submissions in a salary dispute with the BC Provincial Court.
Enter Bill 44. This legislation, which just passed first reading, seeks to create “Civil Resolution Tribunals” which will run side by side with BC Courts. Their jurisdiction is anticipated to be ever-expanding by simple Order in Council with the ability of the Government to include anything that “could be dealt with by a Claim in Provincial Court under the Small Claims Act”.
Perhaps the most troubling aspect of this scheme is set out in Section 20 which holds that, except in very limited circumstances, parties must “represent themselves“. It does not take much imagination to understand that stripping people of the right to a lawyer provides a great advantage to institutional litigants.
The Government sets out that this legislation is designed to create “accessible, speedy, economical, informal, and flexible” dispute resolution. Although these goals are laudable, on scrutiny the Government does not appear to put its money where its mouth is with Section 9 specifically exempting claims against the Government from the jurisdiction of these tribunals.
As Vaughn Palmer points out, this Bill is included in a “loaded up” legislative agenda making full scrutiny difficult with limited time. Legislation taking disputes away from the judiciary and further stripping people of the right to representation deserves public scrutiny. I imagine BC’s Provincial Court judges will have strong opinions on the matter as well. Whether these are voiced remains to be seen.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the admission of evidence relating to diminished earning capacity in which the Court highlights the ability of lost opportunities being proven through factual, as opposed to opinion, evidence.
In this week’s case (Fabretti v. Singh) Plaintiff was employed as a Regional Vice President at an independent financial services organization. The Plaintiff was injured in a collision and advanced a claim for diminished earning capacity.
In the course of the claim the Plaintiff obtained a report from his employer’s National Sales Director who provided evidence with respect to the Plaintiff’s employment opportunities. The Defendant objected to the admissibility of this report for a number of reasons. Mr. Justice Savage ultimately held that the report was not admissible as it was not written by a ‘properly qualified expert‘.
The Court noted, however, that much of the evidence could likely be admitted simply as a matter of fact (as opposed to opinion). In doing so the Court provided the following reasons:
[19] In this case, the subject matter of Mr. Andruschak’s Report is the plaintiff’s future earning capacity. However, Mr. Andruschak’s experience is properly viewed as concerning the earning possibilities for RVPs at Primerica generally; his experience is not in preparing objective reports on how such earning possibilities might manifest themselves in specific individual into the future.
[20] Thus, while having firsthand knowledge and experience in RVPs’ earning potential at Primerica, based on their actual earnings, which is information that may be useful to the Court, Mr. Andruschak does not offer particular expertise in the subject matter of the Report, purporting to prepare an objective estimate of future income and thus income loss for a specific person. As such, on the basis that Mr. Andruschak does not qualify as an expert, the Report cannot be admitted on that basis.
[21] Given my findings regarding Mr. Andruschak’s qualifications as an expert, it is unnecessary for me to canvass the defendant’s arguments regarding the Report’s formal compliance with the Rules. As I have said, however, much of the information in the report is potentially relevant and germane. I will leave it to counsel to review and discuss that matter amongst themselves. If required I will make further rulings on the proposed evidence. It may be that Mr. Andruschak’s evidence would be better presented simply viva voce with the assistance of a few graphs or charts.